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To elaborate: say you have consensual sexytimes with somebody, but you also feel that they may try to manipulate you afterwards. The next day, they falsely accuse you of rape.

Anticipating this, you had a voice recorder on your phone running all last night that documented the entire encounter and clearly illustrates that the encounter was consensual and that the alleged rape charges are false.

However, in a number of states, all parties must be aware of the recording. You're violating the law by using this recording as evidence.

So, if the recording proves your innocence, but you did not have all-party consent, what happens?

I found a case from 2008 in Connecticut (one of the all-party notification states) where the son of a dying mother secretly recorded a conversation with his family (mother, son, stepfather) about her will. She never made an official will.

He produced the recording in court to use in place of a will to help his outcome and his stepfather sued him for privacy violations of the Wiretap Act. The judge ruled in favor of the son, stating that in order to be charged, conversations must "be intercepted for the purpose of a tortious or criminal act that is independent of the intentional act of recording."

I assume a similar thing would apply here: as long as there is no malicious intent, it's not illegal to secretly record. It seems like a bit of an ambiguous issue, though - when can you prove malicious intent? I've been racking my brain over this, so thanks in advance for your input, guys!

EDIT: I just want to add that this is an entirely hypothetical situation, and I'm not requesting legal advice - just the informed thoughts and musings of the denizens of /r/law. Cheers!

There's no general defence for crimes committed in the course of proving one's innocence. The Wiretap Act is federal, that case was in circuit court, and the basis of the ruling doesn't seem to be based on any incorporated constitutional rights so the logic is specific to the federal crime and persuasive at best at the state level. There's zero guarantee it could be used as a successful defence in state court, given that Connecticut is all-party notification I'm not sure why the case was in federal court in the first place.

Unless the statute says it requires malicious intent or prior case law in your jurisdiction interprets the statute as requiring malicious intent, that would be a very dangerous assumption. In practice actual law isn't really about justice in the broad sense you seem to want it to be, no-one is going to escape charges when the letter of the law is breached because it seems like the right thing to do.

Obviously, it depends on the state and how the statute is written there. I know the criminal statutes for eavesdropping do not always require malicious intent.

But if you're in an all-party notification state and don't have consent from the other party then- yes, you could be charged.

As has been raised, there is the issue of whether it's admissible. In order for it to be introduced as evidence, you would probably have to take the stand and testify that it fairly and accurately depicts what happened. Then you'd have to admit that you recording it without her consent, thus under oath confessing that you violated the eavesdropping law.

Also, the recording would have to be pretty specific in order to completely exonerate you. Like someone mentioned, it would probably need to include the entire sex act including whatever was said before or after. Maybe it would help if they are verbally consenting on the tape or their story is completely contradicted by the tape.

But otherwise, you're an "innocent" dude who just had sex with someone and recorded it without their consent. Not exactly the best defense when you're accused of engaging in sexual encounters without consent.

Like someone else said, that sounds pretty gross and I'd be afraid a jury would think you're a creep who's exploiting people sexually. I probably wouldn't believe someone who said, "I was just recording our sex act just in case and wasn't going to play the recording for anyone or sell it or post it on the internet or anything like that."

Still goes a long way to helping him even if it was only at the threshold. [this is hypothetical theorizing, not advice] Victim will have to fabricate a story about how she later changed her mind and communicated it effectively enough that a reasonable person would understand consent had been withdrawn. And she'll have to do so well enough to convince a jury. Unless you have a panel of 12 /r/srs readers you're probably okay.

What the fuck? I don't think I have seen this jblo before in /r/law but man did you come to the wrong place. If you are gonna joke, you better damn well make sure it is two things: Funny and legally correct.

Well - depends on how the rape statute is written. For example, in England, a woman can revoke consent at any time... thus it is possible for a woman to consent, go to bed and halfway through sex decide to change her mind and revoke consent (say it starts to hurt, etc).

Now - what good would such a recording do then? You may be able to show that she consented to penetration - but she or the prosecutor can later argue that consent was revoked after the recording...

Now, you could get around this by recording the entire encounter - but if you need to go to such lengths - why are you sleeping with this person?

Regardless of your questions about the legality of wiretapping, please understand that you don't get charged with a crime every time you commit one and a prosecutor finds out about it. Prosecutors have a lot of discretion.

hmmm... why are you having sex with someone you REALLY don't trust in the first place? Maybe that's what you should focus on. If its such a concern that they may try to falsely accuse you and then sue you later what else could they be hiding? Perhaps a slew of STD's or they aren't really on birth control...

You know, it's not that we're just after convictions. It's that we are about justice. And part of justice is being fair and applying the law equally to everyone. Your opinion of justice seems to be a little distorted where the ends justify the means.

Assuming there is no malicious intent requirement....

Let's say the false rape allegation never happened. Now all you have is a guy recording sex with someone without her knowledge. That's pretty fucked up. And, in this hypothetical, it's illegal. So the enforcement of the law is entirely proper. It would be entirely proper to convict the guy in this case. He broke the law.

Adding in the false rape allegation doesn't make it okay that he broke the law. It doesn't excuse it, nor mitigate it. When he broke the law, he didn't know he was about to be falsely accused. I question why he would "anticipate" being falsely accused but still sleep with someone, that's some poor decision making skills, and it doesn't mitigate his crime because there was no justification at the time he chose to record. He could have simply not had sex. Him being convicted is justice.

(BTW I don't get to play the "Fiscal Ruin" card... ever, because everyone has a PD)

So, he's committed a crime and now has evidence that his accuser is lying. Well holy fuck, I care about perjury a lot more than I do recording someone without their consent. I can probably use that recording at trial because there's no state action involved in obtaining it.

I'd much rather convict someone for perjury than for illegal recording because, to me, and to most of my colleagues, perjury is abhorrent. So now the question is, what's the best way to handle my victim's illegal recording in a manner which is least likely to jeopardize the perjury conviction. The jury is going to find out about it, since the fruit is my main piece of evidence, so dismissing it (and granting the victim/defendant) an undeserved windfall isn't necessarily appropriate. At the same time, it seems his fears were well-deserved, even if he was too horny for his own good, and his testimony is necessary for the prosecution of the perjurer, so he need to cooperate and as such I need to reward that cooperation.

First order of business though, is advancing and dismissing the rape case against him because I don't have probable cause to believe he committed the crime. That's my ethical obligation here (and the right thing to do).

After that, assuming no record or history of doing this, I'd offer a violation with a small fine, or a straight conditional discharge with the condition being that he testify at the perjurer's trial. I'd probably drop down to an Adjournment in Contemplation of Dismissal if he pushed it though.

The purpose of a wiretap law is to protect people's privacy. The people are served by the fair enforcement of the law. By recording that conversation (or sexual act) even if for his own use, he has violated the other person's expectation of privacy.

If a guy drives home drunk, doesn't hit anyone, and doesn't cause an accident, what's the harm?

The prosecution of every law stems from a variety of considerations such as punishment, restitution, rehabilitation, and deterrence. Punishing people who record others without permission, even though they have no intent to publish that recording, would seemingly stem from a deterrence point of view. After all, what happens if his computer is hacked or stolen and the thief publishes that recording on the internet. Now do we prosecute him, even though that was an unintended result? What about the statute of limitations? How is it fair to punish some people who commit the same crime as others, because of factors that were not foreseeable or intended?

If the legislature wanted some "malicious intent" requirement in the law, they'd put one in.

Justice isn't served by prosecuting someone for exposing a false accuser. It's served by prosecuting someone for breaking the law. Which is what he did. Two wrongs do not make a right and he has no defense for his crime here.

Perjury is worse. The false accusation is worse. That's why I'm giving the other guy the lightest reasonable deal possible so I can punish the perjurer. But the fact of the matter is, is that the defendant is also a victim and the victim is also a defendant. They both broke the law. The goal is to punish both equitably.

I would say the point of law and justice is not to serve people. The law is not subservient to society and justice isn't about your whim or pleasure. The point of justice and law is to ensure people treat each other fairly and to allow civizilation to function in an orderly manner.

What if, instead of making a recording, he stole her phone (because he needed a new phone) and then later found text messages that exonerated him? Do we not punish him for stealing?

What if a gang member takes an illegal gun with him to a drug buy because he's afraid the other guy is going to rob him, and, sure enough, the other guy pulls out a gun and points it at the gang member... only the gang member manages to shoot him and escape, he's got a self-defense argument. Do we not charge the gang member for carrying an illegal gun though? Do we not charge the drug seller for robbery because he got shot?

Justice isn't served by prosecuting someone for exposing a false accuser.

So why are you prosecuting him nevertheless???

It's served by prosecuting someone for breaking the law. Which is what he did. Two wrongs do not make a right and he has no defense for his crime here.

This is sick, sick, sick. We’re not talking about something that is absolutely wrong, like murder, speeding or pouring hot grits down Nathalie Portman’s pants, but about something that is either legal or illegal depending on the geographical location amongst various jurisdictions in an extremely culturally homogenous Society.

Perjury is worse. The false accusation is worse. That's why I'm giving the other guy the lightest reasonable deal possible so I can punish the perjurer.

You also have the total discretion of not pursuing the “bugger”, but you will nevertheless pursue, because you want to win the next district attorney election, right? (This is something else that is profoundly sick and perverted with the U.S., electing district attorneys and judges, who are therefore bound to do what the people want instead of what has to be done — this is a perversion of the principle of separation of the legislative and the judiciary).

But the fact of the matter is, is that the defendant is also a victim and the victim is also a defendant. They both broke the law. The goal is to punish both equitably.

Which is worse? Perverting Justice, or violating the privary “rights” of a perjurer?

I would say the point of law and justice is not to serve people.

Thank-you for admitting that Justice is but a parallel universe that does not seek to be of any absolute useful value.

The law is not subservient to society

Who makes the law? It does not come from outside Society! In fact, law is made by people elected by Society; so therefore it has to be subservient to Society!!! Otherwise it is a dictature!

and justice isn't about your whim or pleasure. The point of justice and law is to ensure people treat each other fairly and to allow civizilation to function in an orderly manner.

Does justice has to be abusive to be applied fairly? It’s quite abusive to punish someone for the way he has exposed a perjuror!!!

What if, instead of making a recording, he stole her phone (because he needed a new phone) and then later found text messages that exonerated him? Do we not punish him for stealing?

We are specifically talking about making a recording, something that can be legal if you move to an adjacent State.

But if you want to talk about theft, how about issuing a search warrant to search the perjuror’s phone? That’s essentially a legalized form of quasi-theft, and a legalized violation of her privacy — just like the recording is.

What if a gang member takes an illegal gun with him to a drug buy because he's afraid the other guy is going to rob him, and, sure enough, the other guy pulls out a gun and points it at the gang member... only the gang member manages to shoot him and escape, he's got a self-defense argument. Do we not charge the gang member for carrying an illegal gun though? Do we not charge the drug seller for robbery because he got shot?

But if you want to talk about theft, how about issuing a search warrant to search the perjuror’s phone? That’s essentially a legalized form of quasi-theft, and a legalized violation of her privacy — just like the recording is.

Sounds a WHOLE LOT like a line from one of the "Sovereign Citizen" groups who rant about the fringe on flags and write threatening letters about the Corporation of the United States.

If you are so concerned that someone may later accuse you of rape if you have sex with them, and you record their consent so you can still have sex with them, you're pretty much a creep. You know a better way to ensure that they don't falsely accuse you of rape, other than recording them? Don't have sex with that kind of person.

Whether you can be charged with violation of a wiretapping statute is wholly irrelevant to whether or not you can be convicted of rape in that instance. One has absolutely no bearing on the other. (And isn't recording the audio of 2 people standing in the same room outside of the scope of that statute anyway?)